On September 8, Royal Decree-Law 16/2022, of September 6, was published in the Official State Gazette (BOE). This law aims to improve the working conditions and social security of domestic workers. It seeks to equate this group with other employees in areas such as the termination of employment contracts and unemployment benefits, among others.
With entry into force on September 9, although with some exceptions that we will see below, the Royal Decree-Law 16/2022, of September 6 (RDL 16/2022) has been published in the BOE, which improves the working conditions and Social Security of domestic workers.
The regulation aims to equalize the working and social security conditions of domestic workers with those of other employed workers in order to end the historical discrimination against this feminized group.
The regulation seeks to resolve inequality in two areas: the system for terminating the employment relationship and unemployment benefits; likewise, it guarantees the protection of the safety and health of the people who make up this group in a way equivalent to the guarantees enjoyed by any other worker, in line with the anti-discrimination regulations of the European Union and Convention 189 of the International Labour Organization, which implies respect for the constitutional right to health that corresponds to all people.
Finally, coverage in the area of wage guarantee to domestic service workers in cases of insolvency or bankruptcy of employers.
MAIN NEW FEATURES
1. Equal treatment in occupational risk prevention
Through the corresponding regulatory development, a level of protection for the safety and health of people working in the family home is guaranteed equivalent to that of any other worker.
2. Wage guarantee, employer contributions and FOGASA intervention
Wage guarantee coverage is provided to the group of domestic workers, including them in its subjective scope.
Specifically, the employment relationship of this group is incorporated into the catalog of beneficiaries of the compensation recognized by the Wage Guarantee Fund (FOGASA) in case of dismissal or termination of the contract.
The regulations on FOGASA are modified, recognizing, on the one hand, the obligation of employers of domestic service to contribute and, on the other hand, providing compensation coverage to domestic service workers in cases of insolvency or bankruptcy of employers.
The compensation will be calculated at a rate of 12 days of salary per year of service, prorating by months the periods of time less than one year, with the maximum limit of 6 monthly payments, without the daily salary, the basis of the calculation, being able to exceed twice the minimum interprofessional salary, including the proportional part of the extraordinary payments.
3. Unemployment and Social Security coverage
The necessary regulatory changes are incorporated to ensure equal treatment within the Social Security system for domestic workers and other employees, leaving unchanged aspects of management and social protection within the system, as well as other economic and social measures that "do not establish unjustified and less favorable differential treatment, but rather merely adjustments that are fundamentally formal and administrative." However, it was necessary to amend the Social Security regulations that placed female workers at a particular disadvantage compared to male workers without justification based on objective factors unrelated to any discrimination on the grounds of sex.
Consequently, domestic workers cease to be the only labor group that lacked protection in situations of unemployment, even though most have part-time and intermittent employment relationships, which often end suddenly due to the death of their employers and with a special dismissal regime that allowed arbitrary and untimely dismissals without any compensation.
Regarding the method of making the contribution, it is specified for 2022 in the second transitional provision of Royal Decree-Law 16/2022, without prejudice to the fact that from January 1, 2023 it will be carried out in accordance with the corresponding General State Budget Law.
Therefore, contributions are mandatory from October 1, 2022.The bases for unemployment insurance and for determining contributions to the Wage Guarantee Fund (FOGASA) in the Special System will be those corresponding to work-related accidents and occupational diseases, and their determination, between October 1 and December 31, 2022, will be adjusted to the provisions of the current General State Budget Law.
Finally, the content of the sixteenth transitional provision of the LGSS, which addressed the contribution bases and rates and protective action in the Special System for Domestic Employees, is updated, including the new scale of remuneration and bases applicable during the year 2023 for Social Security contributions in the Special System for Domestic Employees:
– Until 2022, salaries and contribution bases will be updated in the same proportion as the increase in the SMI (Minimum Wage).
– In 2023, monthly salaries and contribution bases will follow the following scale:
| Monthly salaries and contribution bases 2023 |
| Section 1, up to 269 euros |
Base: 250.00 euros/month |
| Section 2, from 269.01 to 418.00 euros |
Base: 357.00 euros |
| Section 3, from 418.01 to 568.00 euros |
Base: 493.00 euros |
| Section 4, from 568.01 to 718.00 euros |
Base: 643.00 euros |
| Section 5, from 718.01 to 869.00 euros |
Base: 794.00 euros |
| Section 6, from 869.01 to 1,017.00 euros |
Base: 943.00 euros |
| Section 7, from 1,017.01 to 1,166.669 euros |
Base: 1,166.70 euros |
| Tier 8, from 1,166.67 euros |
Base: monthly remuneration |
4. Equivalent working conditions. Dismissals
Unjustified differences in the working conditions of people included in the special employment relationship under analysis are eliminated in relation to the rest of the employed persons.
Thus, the equivalence extends to the ordinary rules on FOGASA intervention, and also to the form of the contracts: presumption of an indefinite-term contract and full-time hours (unless proven otherwise), the power to demand that the contract be formalized in writing, the right to receive information on essential elements and conditions of performance of the work, etc.
The exclusion from the coverage provided by FOGASA was, according to the regulation itself, an unjustified difference in treatment, given that it is currently possible to declare insolvency of family units under the second chance law.
Related to the new protection system, a restructuring that will have significant effects refers to the three new causes of termination of the employment relationship (in addition to the general ones in article 49.1 of the Workers' Statute):
– The decrease in the income of the family unit or an increase in its expenses due to unforeseen circumstances.
– The substantial modification of the needs of the family unit that justifies dispensing with the domestic worker.
– The behavior of the employee that reasonably and proportionately justifies the loss of trust of the employer.
During the notice period for termination (seven days, or twenty if the provision of services has exceeded one year), the person providing services on a full-time basis will be entitled, without loss of remuneration, to a leave of six hours per week in order to look for new employment.
If the requirements relating to the written form of the termination notice or the provision of compensation are not met, it will be presumed that the employer has opted for the application of the dismissal termination regime.
Time limit for internal employees: for these workers, the termination decision may not be carried out with respect to the internal employee between seven o'clock and eight o'clock the following day, unless the termination of the contract is motivated by a very serious breach of the duties of loyalty and trust.
Special consideration of the concept of withdrawal
Withdrawal was an "exceptional institution," regulated by Royal Decree 1620/2011, which allowed for the unilateral termination of a contract without cause, upon payment of compensation. This legal mechanism was only present in the regulations governing domestic work and the special regime for senior management .
The royal decree-law itself states that this mechanism weakened the safeguards against dismissals based on objective grounds, as it provided an intermediate way to validate the termination. Therefore, employers might be drawn to this mechanism (except in cases where the cause of the disciplinary dismissal is irrefutable), given the lack of need to allege cause and the lower amount of compensation compared to that established for unfair dismissal.
the elimination of this institution necessary because it constituted an unjustified difference in treatment to the detriment of domestic workers, resulting in greater vulnerability, a lack of legal recourse in cases of discrimination, and increased precariousness and vulnerability for this group. As previously stated, from now on, dismissal can only occur for justified reasons , taking into account the specific characteristics of domestic employment.
5. Social Security registration requirements
Applications for registration of workers included in the Special System must include, in addition to the data established in general, the account code of the financial entity in which the payment of the contribution must be made and the data corresponding to the type of employment contract and its minimum content, consisting of the number of monthly and weekly working hours, the amount of the agreed salary, both per hour worked and monthly, including the proportional part of the extraordinary payments, as well as, where applicable, the amount of the agreed monthly salary in kind and the existence or not of an agreement on hours of presence and/or overnight hours, together with the agreed hourly remuneration.
This reference will take effect from January 1, 2023.
6. Bonus system
As previously stated, contributions to unemployment insurance and the Wage Guarantee Fund (FOGASA) are mandatory from October 1st. To ensure these contributions do not place an undue financial burden on employers, they will be entitled to an 80% reduction in employer contributions to unemployment insurance and FOGASA under this Special System.
Furthermore, the 20% reduction in the employer's contribution to the social security contributions for common contingencies corresponding to this Special System is maintained.
These two aspects have an entry into force date of October 1, 2022.
As an alternative to this reduction, employers who register a domestic worker under the General Social Security Scheme will be entitled, for the entire duration of the worker's registration under this scheme, to a 45% or 30% reduction in their employer's social security contributions for common contingencies under the Special Scheme, provided they meet certain asset and/or income requirements, which will be established by regulation. The determination of eligibility for these contribution reductions is the responsibility of the SEPE (State).
The provisions of the preceding paragraph shall have an initial validity date of April 1, 2023.
7. Business assumption of social security contribution obligations (less than 60 hours of service per month)
It is established that employers will assume the contribution obligations for workers who provide their services for less than 60 hours/month per employer.
In this way, the legislator avoids the possibility of workers themselves directly requesting their affiliation, registrations, cancellations and changes of data when they agree to it with the employers.
The date to note is January 1, 2023.During that month, employers must provide the General Treasury of Social Security with the information necessary for calculating and paying Social Security contributions, and in particular the bank details required for payment of contributions, as well as the managing entity or, where applicable, the collaborating entity of Social Security they choose for coverage of occupational contingencies, provided that all this information has not been previously provided.
8. Providing information to the SEPE
Tax authorities, including those with special tax regimes, will be required to provide the State Public Employment Service with the information on contribution benefits that is within its jurisdiction.
9. Commission for the study of occupational diseases
The regulation also establishes the commitment to create a study commission, whose objective is the inclusion of the gender perspective in the list of diseases so that the deficiencies that exist in the field of protection against occupational diseases in jobs carried out mainly by women can be identified and corrected.
10. Evaluation of the new bonuses in the contribution
Another provision will require the Government to develop an analysis of the new bonuses in the contribution to the Special System for Domestic Employees, two years after the entry into force of the rule.
11. Accreditation of skills in the domestic sphere
The Government will develop training and accreditation policies for domestic workers dedicated to the care or attention of people within the household and family. These initiatives will take into account the specific working conditions in this sector and the workers who carry out their activities within it.
12. Transitional regime
The provisions of this regulation apply to contracts in force from the date of its entry into force.
Unemployment insurance and FOGASA contributions will continue until December 31, 2022. The applicable rates from October 1st until that date will be as follows:
– For unemployment: 6.05%, of which 5% will be borne by the employer and 1.05% by the employee.
– FOGASA: 0.2%, to be paid exclusively by the employer.
The decree also stipulates the continuation of benefits for hiring caregivers in large families: the subsidies that were being applied on April 1, 2023, will remain in effect until the date on which the caregivers entitled to them leave the General Social Security Scheme. These subsidies are incompatible with the new reductions established by the Royal Decree-Law.
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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